More than 10 million couples in the United States have fertility issues. It is estimated that more than six million couples will use some form of In-Vitro Fertilization in order to attempt to have a child. In-Vitro Fertilization (IVF) is the medical process in which eggs are extracted from a woman’s ovaries, fertilized in the lab, with sperm, and embryos (fertilized eggs) are created. Usually, two or three embryos are then placed in the ovaries of the woman who is going to carry the child (either the intended mother or a gestational carrier), with the hope that at least one of the embryos will result in the birth of a healthy child. Sometimes as many as 15-20 embryos may be created. The unused embryos are frozen (cryopreserved) for possible use at a later date. These unused frozen embryos could result in the birth of a child for people who might not otherwise have children.

If the person or couple for whom the embryos were created have a healthy child or children – it is not uncommon to have twins (sometimes more) from the implanted embryos as a result of the IVF process., The donating couple (“donors”) might choose to donate the remaining frozen embryos to another person or couple seeking to have a child. The new couple, through IVF, could have their own child or children with the donated embryos. Sometimes people refer to this as embryo adoption, but it is not adoption in the legal sense. It is a donation. Missouri does not legally allow such donations in exchange for payment. Some states have specific laws regarding the donation of embryos. Missouri and Illinois do not.

It is critically important that the intended parents and the donors have a carefully drafted written agreement with each other spelling out their rights and obligations. All reputable fertility clinics or embryo banks will require a written agreement between the donors and the intended parents and most of these clinics will require both parties to be represented by attorneys. The most important purpose of the agreement is to say, in unequivocal terms, that the intended parents have sole right to raise and parent any child or children that is/are born from the embryos, and that the donors give up all of those rights. It is also critically important to spell out what will happen to any of the embryos which might not be used by the intended parents. If the first IVF procedure is successful, there might still be viable unused embryos left over. Are they to be returned to the donors? Should they be donated to another couple? Should they be used for research or otherwise destroyed?

The good news is that, although the medical part of the process is traumatic and stressful, the legal part of the process should be relatively simple. Everyone is working toward the same goal – hoping that the donation of the embryos results in a healthy child or children for the Intended Parents. An attorney can assist making that goal free from legal problems by aiding the donors and intended parents obtain a comprehensive and legally binding agreement.

Tim R. Schlesinger

Attorney Tim Schelsinger practices in The Firm's Family Law Group as well as providing estate planning representation. In addition to his legal work, Mr. Schlesinger is on the Board of Directors for The Women's Safe House. Some of his more specialized cases have included surrogacy, Egg Donation, Embryo Donation, and Third-Party Assisted Reproduction.